Hope Visits Death Row After High Court’s Ruling

Two decades ago, an Alabama jury unanimously decided that Phillip Tomlin should get life in prison instead of death for killing a man involved in the murder of his brother and his brother’s 15-year-old girlfriend.

But under the state’s laws, the judge overruled the jury and put Tomlin on death row, where he has been ever since.

The attorney who represented Tomlin in his latest trial--his fourth--said Monday’s Supreme Court ruling could give Tomlin and hundreds of inmates like him a chance to get off death row.

The court ruled that jurors, not judges, must decide the critical issues that determine whether a convicted killer is sentenced to death, potentially affecting nearly 800 cases in nine states, from Delaware to Colorado.

Prosecutors and defense lawyers were still assessing the effect of the ruling Monday. It was unclear how many inmates could be affected because the justices did not specify whether the ruling applies in cases where appeals have been exhausted.

But Colorado’s attorney general sought to reassure the public that none of the three convicted killers sentenced to death by judges in his state would be released from prison. At a minimum, they would be sentenced to life in prison, he said.

In Arizona, whose law was declared unconstitutional by the court, Atty. Gen. Janet Napolitano urged all presiding judges to suspend sentencing in death penalty cases and called on the governor to plan a special session of the Legislature to amend the state’s death penalty statutes to comply with the court ruling.

The Nebraska attorney general’s office issued a statement saying the decision “does not affect in any way the fact that Nebraska prisoners currently under a sentence of death are guilty of first-degree murder.”

Idaho, Colorado and Montana, along with Arizona and Nebraska, leave it to judges to decide whether a defendant is sentenced to death. In Alabama, Delaware and Florida, juries make recommendations but judges make the final call. California was not affected by the decision because juries decide whether a defendant should be put to death.

In Delaware, prosecutors weren’t sure whether the ruling would even affect the state.

“There were a number of important questions left unanswered by the Supreme Court’s ruling,” said state prosecutor Steve Wood. “We don’t know whether the ruling applies to Delaware. That question ultimately will be answered by a federal court.”

Although Delaware has 15 inmates on death row, there has been only one case since the death penalty law was adopted in 1991 where the judge imposed a death sentence after a majority of a jury recommended a sentence of life in prison--a case involving a man who fatally shot a woman during a robbery in Wilmington.

However, there have been a number of cases where judges declined to impose the death penalty, even though a majority of jurors recommended it.

The Idaho attorney general’s office expects that the ruling will be raised by all 21 inmates now facing the death penalty in that state.

“We’re going to see how it plays out on a case-by-case basis,” said Michael Henderson, chief of the office’s criminal law division.

The ruling is likely to apply to six of the 21 cases because they remain in the direct appeals phase, Henderson said.

But even in some of those cases, Henderson said, the office hopes to avoid new trials by arguing that the jury’s verdict in effect shows that it found aggravating factors required by the new ruling. For instance, Darrell Payne was sentenced this spring to death for the abduction and killing of a young Boise woman. The jury found that the killing was premeditated and done during the commission of a felony crime.

“We’ll argue that no harm was done because the jury would have found the aggravating factor and did find the aggravating factor by arriving at these verdicts,” Henderson said.

Montana Atty. Gen. Mike McGrath said the ruling will not have any effect on the six death row cases in his state because the Supreme Court did not specify that the ruling was effective retroactively. In each of the six cases in Montana, the inmates have exhausted their direct appeals.

Until now, judges have decided whether there were any aggravating circumstances to warrant the death penalty in homicide cases, McGrath said.

In the future, juries must make these findings of aggravating circumstances, such as that the homicide was in a prison or resulted in multiple deaths, he said.

But in Montana, judges will still be responsible for imposing the death penalty after the jury makes its findings, he said.

If there are legal challenges to the existing death penalty convictions, McGrath said, his office will fight them, and he does not expect any problems because the aggravating circumstances in each is obvious given the facts of the case.

“I’m familiar with all of them and each of them are clear cut,” he said.

In Florida, the attorney general’s office was examining the effect of the ruling on seven cases in which a jury recommended life but judges imposed the death sentence.

In Alabama, attorneys for Tomlin said they expect his case to go back to a jury for sentencing.

“Our argument is going to be that the death penalty is not valid in that case,” said Stephen Bright, an attorney and director of the Southern Center For Human Rights in Atlanta. “If we win, he gets to go back to have a jury trial” to decide his sentence.

Bright said his group has about 20 death row cases in Alabama, and all of them could be affected.

“But the best and strongest cases are cases like Tomlin’s,” he said.

Bright disagreed that the ruling only will affect cases that are still under direct appeal and suggested that the ruling might offer a ray of hope to others on death row.

“Can you determine you’re going to carry out 100 nonconstitutional executions?” Bright asked. “I would think not.”